Shifting mood a factor in gay civil rights cases

Justices hear arguments this week in actions originating from California, New York

By Carolyn Lochhead

Published 9:45 pm, Saturday, March 23, 2013

Photo: J. Scott Applewhite

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Senate Energy Committee member Sen. Rob Portman, R-Ohio, sits in on the committee's discussion on the nomination of Sally Jewell to be secretary of the Interior, Thursday, March 21, 2013, on Capitol Hill in Washington. Last week Portman announced he is supporting gay marriage and says his reversal on the issue began when he learned one of his sons is gay. (AP Photo/J. Scott Applewhite) less

Senate Energy Committee member Sen. Rob Portman, R-Ohio, sits in on the committee's discussion on the nomination of Sally Jewell to be secretary of the Interior, Thursday, March 21, 2013, on Capitol Hill in ... more

Photo: J. Scott Applewhite

Shifting mood a factor in gay civil rights cases

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Washington

The political and legal terrain on same-sex marriage is shifting so fast that the choice facing the U.S. Supreme Court this week on two momentous gay civil rights cases is whether to delay history or to join it.

The Proposition 8 case from California, to be argued Tuesday, and the Defense of Marriage Act case from New York, to be heard Wednesday, are themselves generating a stunning move toward marriage equality.

The cases have flushed out fresh support from the highest levels of American politics and left a shrinking circle of opponents hoping that the court will stop short of declaring gay and lesbian marriage a constitutional right in all 50 states.

"We are at a point where the jurisprudence and the arguments opposed to freedom to marry have become almost caricatures, offensive not just to gay people, but to virtually anyone," said Kate Kendell, executive director of the National Center for Lesbian Rights in San Francisco.

Supreme Court justices are not immune to public opinion or the cultural context of their rulings, legal scholars said. Polls show record support for same-sex marriage — 81 percent among people under 30 and 58 percent overall according to last week's ABCNews/Washington Post poll.

Decisions to uphold Prop. 8, which banned same-sex marriage in California, and the Defense of Marriage Act, or DOMA, which denies federal recognition to married same-sex couples, could quickly be overrun by history.

No justice wants to be attached to an infamous decision like Korematsu v. United States that upheld the internment of Japanese citizens in World War II, or Plessy v. Ferguson, that upheld racial segregation.

"As public opinion has changed, it begins to look more like bias and less reasonable to simply categorically remove same-sex couples" from marriage, said Jane Schacter, a professor of constitutional law at Stanford University. "I don't think the court checks the polls. It's more how court weighs the arguments. As ideas become more familiar, they seem less foreign and radical and odd."

Political opposition to same-sex marriage is melting. Among those who have changed sides in the last two weeks: Bill Clinton, the Democratic president who signed DOMA; former Secretary of State Hillary Clinton, who refused to endorse same-sex marriage in her 2008 presidential campaign; and Republican Sen. Rob Portman, who last week embraced the possibility of marriage for his gay son.

Conservative opinion makers are abandoning ship. Columnist George Will said last week that the federal government has no business telling states whom they can marry. David Frum and Michael Gerson, speechwriters for former President George W. Bush, who endorsed a constitutional ban on same-sex marriage, signed an amicus brief from more than 100 Republicans supporting Prop. 8 opponents.

Legal experts are widely predicting a win for DOMA plaintiff Edith Windsor, an 83-year-old lesbian widow whose marriage was recognized by New York but who was forced by the Internal Revenue Service to pay $363,000 in estate taxes when her spouse died.

The Obama administration not only refused to defend DOMA but filed a brief arguing that it violates the equal protection clause of the 14th Amendment.

If Windsor wins, section 3 of DOMA that prevents federal recognition would be struck down, but it would affect only same-sex couples who are married in states that allow it. It would not force any states to recognize such marriages.